Tag Archives: family law arbitration

Rock legend Randy Bachman thought he was “taking care of business” when he and his wife, Denise Beck Bachman opted out of their divorce trial and agreed to settle their financial issues amicably last January. A smart move….however, sometimes in family law, one party thinks they’ve got a deal, while the other disagrees.

That’s exactly what brought the Bachman’s into Supreme Court recently.

The couple married in 1982 and became step-parents of each other’s children from previous marriages. Randy had six children with his first wife, while Denise had one son. Together they brought their own child into the world and remained a couple until their separation in 2011.

Their alleged settlement provided Denise with 27.5% of his annual song royalties of $1.4 million a year, and $32,000 a month in spousal support. As part of Denise’s financial package she was to acquire one-half of a residence in London, England upon Randy’s death.

However, she later learned that the property had been transferred to a trust and she claimed the beneficiaries were Randy’s six children and not her.

Meanwhile, while Mr. Bachman argued that a full agreement had been reached, he did not pay Denise her $32,000 monthly support but instead had paid her $3,000 a month.

Denise advised Chief Justice Hinkson that no final agreement had been reached because her husband had not agreed to provide “security” for the payments she was to receive. Security can be in many forms including the granting of a mortgage, a sum of money held in trust, or a letter of credit.

The purpose of security is that if the payor refuses or cannot pay the sums owed, the security can be used to make the required payments.

Denise’s argument prevailed. The judge ordered that if security was an integral part of the agreement and it had not been agreed by the parties, then the agreement was not complete. CJ Hinkson also said it was not the Court’s responsibility to fill in the details of an otherwise incomplete agreement. The judge also ordered Mr. Bachman to pay his wife $32,000 a month pending a final settlement or judgment.

So, the Bachman’s are back where they started. They can either negotiate a new settlement of the financial issues or book a trial and have a judge decide the issues. Or if they were really smart they would hire a family law arbitrator to resolve all matters and thus avoid the cost, delay, and publicity of a trial.

The public unravelling of a rock and roll marriage would undoubtedly generate a media frenzy!

Today’s decision from the Supreme Court of Canada in A. v. B. has closed the door for common law spouses in Quebec to receive spousal support upon the demise of their conjugal relationships, a ruling that signaled the conclusion of a long-running legal saga launched by the former common law spouse of a Canadian billionaire.

While married spouses and those in civil unions are entitled to apply for support, “de facto” spouses, the term used for common law spouses in Quebec, may not, unless they have entered into a cohabitation agreement with their partner which provides for support upon the breakdown of their relationship.

Quebec’s distinctive language and culture is also accompanied by a Napoleonic legal system which is not shared by other provinces in Canada. Our highest Court examined the spousal support provisions of the Quebec Civil Code and determined that freedom of choice and personal autonomy trumps a family law regime that imposes obligations on spouses who do not expressly consent.

The upshot? If you want spousal support in Quebec you need to be married, in a civil union, or have a cohabitation agreement which covers support if the relationship fails.

Ironically, while the absence of support for common law spouses in Quebec has now been confirmed as constitutional, the British Columbia legislature is mere weeks away from ushering in new law that will see common law spouses, including same-sex partners, enjoy the same benefits as married couples in regards to the division of property.

All Canadian provinces, with the exception of Quebec, provide for spousal support for common law spouses, but British Columbia’s new law is cutting-edge, albeit B.C. is not the first province in Canada to afford property rights to common law spouses. Those honours belongs to Manitoba, Saskatchewan and New Brunwick. However, it is a radical departure from the law as we know it today.

Presently, British Columbia couples are obliged to share all of their property, even if the property is brought into the marriage by one of the spouses. Our new law will ensure that if a spouse brings property into a marriage or common law relationship, that property will belong solely to the spouse who owns the property. However, if the property increases in value during the marriage or common law relationship, the increase in value may be shared by the parties.

As well, certain property will be exempt from sharing, including inheritances, which in our current law has been the source of bitter disputes, particularly when a large inheritance has been received by one spouse in the waning years of a marriage.

Another feature of B.C.’s new law will be the introduction of family law arbitration, a dispute resolution mechanism which is “old hat” in Ontario. In fact, Ontario lawyers have advanced to “med-arb”, a process where a senior lawyer or retired judge first tries to mediate a dispute and if that is unsuccessful, assumes the role of arbitrator and makes a final decision for the parties.

While Canada’s federal Divorce Act remains unchanged, with the exception that same-sex couples may now divorce, family law is rapidly evolving throughout Canada, depending upon where you live, and will likely not slow down anytime soon.

How could it be otherwise? Lawmakers across Canada need to figure how to approach sperm and gamete donation, donor parents, surrogacy contracts, and other intricacies of the new technology, together with the ramifications of same-sex marriage and divorce: all of which is changing what families look like in Canada today.

No matter what news sites you frequent or what newspapers you read, inevitably you will see a plethora of articles decrying the state of family law, whether it’s in Canada, the United States, Great Britain, or a myriad of other countries where beleaguered husbands, wives, parents, grandparents and children are taking a stand against justice systems that do not serve their best interests.

The legitimate complaints are legion and run the gamut from too few judges and impossibly lengthy delays; to outrageous legal fees, and a system that fosters disharmony and conflict.

Family law mediation has played an important role in alleviating the worst parts of the family courts, but mediation, which requires two reasonable people willing to compromise on the issues between them, is not for everyone.

There will always be people who are unable to “give in” and would rather have a decision foisted on them, than agree to anything their estranged spouse might suggest. The mere fact that a proposal comes from their former partner is enough to compel them to reject it.

These are the people who end up in court in lengthy trials that have exacting costs: financially and emotionally. When custody of children is an issue, the battleground of the courtroom renders justice that is often demanding, demeaning and destructive.

Certainly it is true that courtroom justice is for the very few who can afford it. Our system of family law has priced itself out of reach of the average middle-class family.

As social reformers and parliamentarians search for a remedy for what ails our family law courts, many jurisdictions have arrived at the conclusion that mediation must be expanded, to include judicial mediation, and that arbitration must be implemented for those cases that need decisive finality.

British Columbia’s long-awaited overhaul of the 1979 Family Relations Act, the pending Family Law Act, codifies family law arbitration, a sign that B.C’s Attorney-General’s Ministry has realized that family law courts are the worst place for couples to resolve their divorce issues.

How does arbitration work? First of all, you need senior, experienced family law lawyers or retired judges with an affinity for family law, a group that is almost extinct. Insiders know very well that most judges would opt out of family law cases if they had a choice. Extensive training is necessary to learn the skills required, akin to those a judge brings to her courtroom.

An arbitrator must be a neutral professional who understands the purpose and goals of arbitration and is an expert in the rules of evidence, rules that are less stringent than those found in the litigation arena. Also important is a depth of knowledge of substantive family law.

The key to arbitration is not to turn the process into a facsimile of the court system. The cornerstone of arbitration is a simplified, expedited decision-making process where both parties are heard and swift, reasoned, justice is fashioned.

The parties and their lawyers choose how they wish to proceed. Often couples agree on a statement of facts, submit their evidence via affidavits, provide a summary of the law relied on, and deliver their material to the arbitrator. Sometimes the parties’ lawyers will request an opportunity to provide oral argument with time limits agreed to in advance.

Where the arbitrator is charged with deciding one or two discrete legal issues, the arbitration can be booked within thirty days and the arbitrator can and should produce a written decision within thirty days after receiving the parties’ submissions.

Family law arbitration is also ideal for couples who do not want their “dirty laundry” on display for the entire world to see. Our courts operate transparently, a value that is cherished in democratic countries; however, the Reasons for Judgment in any given lawsuit are published on the internet, often revealing embarrassing details of family life and finances. Did you know your neighbor Mr. Smith was a cross-dresser?

For couples who have tried mediation and failed, arbitration is the beginning of a future that eschews high-costs and high conflict, an option whose time has come.